Well, it looks like a courageous Palo Alto lawyer has decided to escalate the conversation as to whether LEED ordinances, city ordinances that require developers to build green, are lawful or not. Here’s the background story. Currently, Palo Alto requires public projects of 10,000+ sf to be certified under the USGBC guidelines, but they’re considering a mixture of alternatives that would requireprivate developers to build to USGBC standards. Generally speaking, there are two ways to get private developers to go green:

Stick Regulations – charge a "green fee" for developments that aren’t green, deny site plan or building permit approvals, or require LEED for approvals.

Palo Alto City Attorney Gary Baum warned that green building requirements (i.e., stick regulations) have no legal basis. Further, it’s in the city’s best interests to incentivize rather than restrict. Let’s get legal, though. What differentiates standard building codes with green building codes? There’s a legal basis for adherence to standard building codes, but there’s no basis for green building codes? Is it the police powers? Where’s the argument for "no legal basis?" I’m not saying I disagree, because personally, I think it’s more effective to go with option #1, carrot incentives. But let’s enunciate the argument for there being no legal basis to adopt a LEED ordinance.

There’s a philosophical component to the situation and I see three general options: wait on the free market, incentivize the market, or regulate the market. The free market would likely be against both the second and the third, because incentives also interfere with market economics. The incentivizer would say the free market never comes around and the regulator is a pain in the butt. The regulator would say the free market is weak and slow and the incentivizer trades money for cooperation, the wrong way to make sure something gets done. What do you think? Free market? Incentivize? Regulate? LEED Ordinances are illegal?

I love blogging, I really do. Blogging enables me to connect with and learn from some really smart people. For example, last week I posted that I’d be in Washington, D.C., and I received a flood of suggestions and ideas for enjoying the greener side of the city. My friends at Edelman (Tristan + Kate) lined up a meeting with small-wind expert, Ron Stimmel, at the American Wind Energy Association’s Headquarters. It was awesome. I was able to sit down with Ron and talk about a pretty big development in the small-wind industry right now.

Recently, Senators Ken Salazar (D-Colo.) and Gordon Smith (R-Ore.) introduced legislation ("Rural Wind Energy Development Act" (S. 673)) that would allow purchasers of a small wind system to receive a credit on their taxes for a portion of the turbine’s total cost, or $1,500 per 1/2 kW of capacity. The five year credit would apply to all wind systems with capacities of under 100 kW used to power homes, farms or small businesses. The same day I was in town, a similar version of this legislation was also introduced in the House, H.R. 1772, by Earl Blumenauer (D-Ore.) and Tom Cole (R-Okla.). According to current estimates, small wind is suitable for about 15M homes and 1M businesses in America. If you want to get involved, Stimmel recommends calling your representative and asking them to co-sponsor the legislation. Get it moving.

According to Stimmel, "This would be the first federal incentive in 20 years to help individuals – homeowners, farmers, and small business owners – buy a small wind turbine." I asked him about some of the hurdles the industry is going through and he was positive about the direction small wind is going. Small wind needs reputable companies manufacturing the turbines and installers need to be well-trained to make sure the turbines get the best wind. Maybe in the near future, there could be some type of certification system for installing small wind, which could be a significant boost to the technology. At least for the moment, having these tax credits puts small wind within reach for many homeowners, farmers, and small business owners that could desperately use the technology.